Citation Nr: 1503494
Decision Date: 01/26/15 Archive Date: 02/09/15
DOCKET NO. 09-19 598 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Denver, Colorado
THE ISSUES
1. Entitlement to a compensable evaluation for deviated septum with bilateral nasal valve collapse.
2. Entitlement to a compensable evaluation for chronic rhinosinusitis.
3. Evaluation of post traumatic stress disorder (PTSD) with major depressive disorder (MDD) and history of alcohol dependence and drug use, currently rated as 50 percent disabling.
4. Entitlement to a total disability rating based upon individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Colorado Division of Veterans Affairs
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Y. Venters, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1971 to March 1973.
These matters come to the Board of Veterans' Appeals on appeal from rating decisions issued by the RO.
In November 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At the hearing the Veteran submitted additional evidence in support of his appeal for which he waived jurisdictional review by the RO in the first instance. 38 C.F.R. § 20.1302.
The issues of evaluation for deviated septum with bilateral nasal valve collapse, evaluation for chronic rhinosinusitis, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
PTSD has most nearly approximated occupational and social impairment with deficiencies in most areas such as work, family, thinking and mood due to such symptoms as suicidal ideations, depression, panic attacks, sleep disturbances, nightmares, poor concentration, irritability, intrusive thoughts/memories of being assaulted in service, and extreme avoidant behaviors.
CONCLUSION OF LAW
The criteria for a 70 percent disability rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Assist and Notify
The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. In February 2006 and June 2008, the Veteran was given notice of the information and evidence necessary to substantiate a claim for disability compensation. He was further advised of the information he was responsible for providing and of the evidence VA would attempt to obtain. The notice also provided information as to how VA assigns disability ratings and effective dates. The Board notes that the claim for an increase is a "downstream" issue in that it arose following the initial grant of service connection. The claim was most recently readjudicated in the September 2010 Supplemental Statement of the Case.
VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, private treatment records, and lay statements from the Veteran and his friends. The Veteran was also provided VA examinations. These examinations contain findings necessary for rating purposes and are considered adequate, as they reflect a pertinent medical history, review of the documented medical history, clinical findings, a diagnosis, and opinions supported by medical rationale.
Moreover, in November 2014, the Veteran was afforded a hearing conducted before the undersigned Veterans Law Judge (VLJ). At the start of the hearing, the VLJ clarified the issues on appeal. There was also discussion regarding additional evidence. This action supplements VCAA and comply with 38 C.F.R. § 3.103.
Analysis
Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
Here, the disability has not significantly changed and a uniform evaluation is warranted.
The Veteran's PTSD has been rated as 50 percent disabling pursuant to the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411.
Under the General Rating Formula, a 50 percent rating requires occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.
A 70 percent rating is warranted for even greater occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or
depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.
An 100 percent rating requires total occupational and social impairment due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id.
The General Rating Formula outlines six disability levels from zero to 100 percent, each defined using a similar format. For instance, all five of the non-zero disability ratings in the General Rating Formula require some degree of occupational and social impairment. All non-zero disability levels are also associated with objectively-observable symptomatology, and the veteran's impairment must be due to those symptoms. Most importantly, as the ratings increase from 10 to 100 percent, the associated symptoms become noticeably more severe. Most of the General Rating Formula is dedicated to associating certain symptoms with certain disability ratings, and to this end, the regulation's plain language highlights its symptom-driven nature. A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.
The Global Assessment of Function (GAF) score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV); see also Carpenter v. Brown, 8 Vet. App. 240 (1995). According to DSM-IV, a GAF score of 71 to 80 indicates the examinee has, if at all, symptoms that are transient or expectable reactions to psychosocial stressors but no more than slight impairment in social, occupational or school functioning. A GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning. A GAF score of 31 to 40 indicates the examinee has some impairment in reality testing or communication or major impairment in several areas, such as work or school. A GAF score of 21 to 30 indicates that the examinee's behavior is considerably influenced by delusions or hallucinations, has serious impairment in communication or judgment, or is unable to function in almost all areas of life.
A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994).
In this case, the Board concludes that the symptoms of the Veteran's PTSD have most nearly approximated occupational and social impairment with deficiencies in most areas.
The Veteran is service connected for PTSD with MDD and a history of alcohol dependence and drug use. The Veteran was assaulted during service and his PTSD is due to the assault.
VA Medical Center treatment records from June 2006 to May 2010 show that the Veteran receives therapy for symptoms of PTSD. The treatment records note that due to the severity of the Veteran's PTSD he is unable to establish and maintain relationships, and his ability to continue to maintain gainful employment is highly questionable. A GAF score of 41-50 is found throughout the time period. The GAF score indicates that the Veteran's symptoms of PTSD result in a serious impairment in social, occupational, or school functioning,
The Veteran was afforded a VA examination in February 2008. The examiner noted that the Veteran had symptoms of PTSD since the assault. The examiner indicated that the Veteran was lean and appeared physically fit. He stated the Veteran was casually dressed and neatly groomed and his affect ranged from tearful to normal. The examiner asserted there was no indication of psychosis with any reported auditory or visual hallucinations. He noted that the Veteran experienced suicidal ideation but it was primarily passive and he had no current plans and had never attempted suicide. The examiner reported that the Veteran experienced anger at high levels and rage, but the he described him as not being homicidal and not having a plan at this time and names no person. In summary, the examiner stated that the symptoms from the Veteran's PTSD result in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to signs and symptoms but generally satisfactory functioning. A GAF score of 55 was given.
In a letter dated April 2008, the Veteran's mental health examiners from the Denver VA Medical Center state that the Veteran has intrusive and distressing memories and dreams of the assault that incurred in service. They asserted that the Veteran continues to have avoidance symptoms, consisting of avoiding people, places and events, emotional numbing, where it is difficult for him to identify and share loving caring emotions, arousal symptoms, that consists of being easily agitated and angered, has poor concentration and memory, poor sleep, has an exaggerated startle response that is triggered by loud sounds and sudden movement and depression evidenced by feelings of helplessness, hopelessness, and periodical periods of sadness. The examiners opined that due to the severity of the Veteran's PTSD symptoms he continues to experience difficulty in the areas of employment, family relationships, judgment, thinking and mood. They concluded that the Veteran meets the criteria for a disability rating of 75% for PTSD symptoms. A GAF score of 45 was given.
VA Medical Center treatment records from May 2009 to September 2010 show no significant change in the Veteran's behavior or symptoms. The records show that the Veteran continues to receive therapy for symptoms of PTSD.
The Veteran was afforded another VA examination in January 2014. The examiner confirmed the Veteran's prior diagnosis of PTSD with MDD. He listed the Veteran's symptoms as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting.
The examiner indicated the Veteran was neatly groomed and appropriately dressed and his speech was normal. He asserted that the Veteran's affect was mildly flattened and mildly anxious. He noted there was no evidence of psychosis and his intelligence appeared to be normal, based on fund of knowledge and vocabulary. The Veteran denied homicidal thoughts, or suicidal thoughts.
In summary, the examiner stated that the symptoms from the Veteran's PTSD result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.
During the November 2014 hearing, the Veteran testified that he does have suicidal ideations.
In light of the evidence summarized above, the Board finds that a 70 percent evaluation for PTSD is warranted. In this regard, the evidence shows that the Veteran has occupational and social impairment with deficiencies in the areas of work, family relations, thinking and mood. His PTSD is shown to be manifested by suicidal ideations, depression, panic attacks, sleep disturbances, nightmares, poor concentration, irritability, intrusive thoughts/memories of being assaulted in service, and extreme avoidant behaviors. He isolates himself and has no desire to be involved in social activities. These findings justify a 70 percent evaluation.
The Board notes that the Veteran's symptoms do not approach the severity contemplated for a 100 percent rating. As set forth above, the criteria for a 100 percent rating are met when the Veteran experiences total occupational and social impairment, which is clearly not demonstrated in this case. The record shows that there has never been any indication of symptoms such as gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting others, intermittent inability to perform activities of daily living, disorientation as to time or place, or memory loss for names of close relative, own occupation or own name.
Upon consideration of all of the relevant evidence of record, the Board finds that the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas supporting no more than a 70 percent disability rating as the Veteran's PTSD has not been manifested by total occupational and social impairment.
The Board is aware that an extraschedular rating is a component of an increased rating claim. Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2008). In the present case, the Board finds no evidence that the Veteran's service-connected PTSD presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1).
The criteria pertaining to PTSD in the Rating Schedule focus on psychiatric symptoms which interfere with occupational and social functioning. As discussed above, such symptomatology describes the Veteran's current disability picture. Thus, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted. Id.
ORDER
Entitlement to a 70 percent rating for PTSD with MDD and history of alcohol dependence and drug use is granted, subject to controlling regulations governing the payment of monetary awards.
REMAND
After a review of the record, further development is required prior to adjudicating the evaluation for deviated septum with bilateral nasal valve collapse, evaluation for chronic rhinosinusitis, and TDIU.
Regarding evaluations for deviated septum and chronic rhinosinusitis, the Veterans Claims Assistance Act (VCAA), specifically provides that the duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002).
The Veteran was last afforded a VA examination to evaluate the severity of his service-connected deviated septum and chronic rhinosinusitis in March 2011.
Significantly, a private medical record dated in October 2014 was provided by the Veteran at the November 2014 hearing. The Veteran's statements during the hearing along with the medical record indicate that there may have been changes in the service-connected disabilities.
The Board notes that the duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been material change in a disability or that the currently assigned disability rating may be incorrect. Caffrey v. Brown, 6 Vet. App. 377 (1994).
Because the evidence shows that there may have been changes in the service-connected disabilities since 2011, the Board finds that a new examination is needed to fully and fairly evaluate the service-connected deviated septum with bilateral nasal valve collapse and chronic rhinosinusitis.
Additionally, any outstanding treatment records regarding the service-connected deviated septum with bilateral nasal valve collapse and chronic rhinosinusitis should be included in the record.
Regarding TDIU, each time a Veteran files a claim for an increased rating and submits evidence of unemployability due to this disability, he has implicitly made a claim for a TDIU. The TDIU is not a separate claim that must be raised with specificity; it is a component of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). In this case, the Veteran's claim for an increased rating for PTSD included a claim for a TDIU, as the evidence indicates that he may be unemployable due to his PTSD. The RO has not, however, adjudicated this claim for a TDIU.
Accordingly, the case is REMANDED for the following action:
1. Take appropriate action to develop and adjudicate the Veteran's claim for a TDIU, to include, requesting any required forms to be completed and if deemed necessary, a VA examination to address the question of whether the Veteran's service-connected mental disorder render, or rendered, him unemployable.
2. The AOJ should also take appropriate action to contact the Veteran in order to obtain copies of any outstanding records referable to treatment rendered for his service-connected deviated septum with bilateral nasal valve collapse and chronic rhinosinusitis disabilities since 2013 and associate them with the claims file.
The Veteran should be notified that he may submit medical evidence or treatment records to support his claims.
3. The AOJ then should have the Veteran scheduled for an appropriate VA medical examination to determine the current severity of the service-connected deviated septum with bilateral nasal valve collapse and chronic rhinosinusitis.
The claims file should be made available to the examiner for review in connection with the examination. Examination results should be clearly reported, to include the current nature and severity of the Veteran's service-connected deviated septum with bilateral nasal valve collapse and chronic rhinosinusitis.
The examiner should identify and describe the nature, frequency and severity of all current symptoms of the disabilities, to allow for application of VA rating criteria.
The supporting rationale for all opinions expressed must be provided.
4. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issues on appeal. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs